Carnegie v The State of Victoria

[1990] HCATrans 41

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M49 of 1989

B e t w e e n -

FRANKLYN BRYAN CARNEGIE

Applicant

and

THE STATE OF VICTORIA,
JOHN HENRY WINTER BIRRELL,

HERBERT THOMAS CUTLER and

HAROLD STANLEY PAULL

Respond~nts

Applica~ion:for special leave
to appeal

MASON CJ DAWSON J

Carnegie

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 9 MARCH 1990, AT 2. 45 PM

Copyright in the High Court of Australia

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MR G.R. ANDERSON:  If Your Honour pleases, I appear with

my learned friend, MR A McINTOSH, for the applicant.

(instructed by McNab & McNab)

MR P.C. GOLOJ:1BEK:  If the Court pleases, I appear on behalf

of the respondent& (instructed by the Victorian

Government Solicitor)

MR ANDERSON:  If the Court pleases, the application arises

out of the trial of an action for two instances

of false imprisonment and - - -

MASON CJ:  We are familiar with the circumstances and we are

familiar, I think, with the consequences of the

order made by the Full Court. What we are

concerned with is whether or not the new trial

should extend, as it were, to the totality of the

action.

MR ANDERSON:  Could I hand to the Court a summary of the

sequence of events and an amended ground of appeal.

At this stage, Your Honour, I will not go to the sequence of events but in relation to the amended

ground of appeal, it is an amplification of
ground e, which appears in the draft on page 133 of

the application book and it sets out the basis upon

which the decision of the Full Court is challenged.

MASON CJ:  Well, the question firstly is this, is it not,

whether the misdirection in relation to onus of
proof affects the claim against the subsequent

defendants.

MR ANDERSON:  In our submission, it is clear that the

Full Court concedes that that is a possibility but,

in our submission, the approach the court should have
taken is, it accepting that there were errors in

the conduct of the trial, those errors themselves

should have vitiated the trial without the need

for the court to consider whether it should

substitute its view of the facts for those of the jury

because the jury was asked one question and that

question was whether the detentions were

unjustifiable and they answered that question, "No".

So that the jury were not able to get beyond that

one question which had inherent in it the vice
that the Full Court found both in relation to the
first period of detention and the second period of

detention. It was an error in the judge's

direction which, in our submission, went to the

heart of the case and the Full Court in their
consideration of the matter in relation to the first
period concluded that but in relation to the second
period they were not prepared to conclude that

and the reason they did not was because they fell

into the error of seeking to substitute their own

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view of the facts for the view that a jury might

take. In our submission, the court correctly laid

down the principle of law that they should apply

which is the principle enunciated by

Chief Justice Dixon in BALENZUELA's case -

MASON CJ:  Now, before you come to that, can you clarify

for me what are the issues that arise at a trial as against the subsequent defendants in relation to the later detentions.

MR ANDERSON:  Your Honour, the issues are whether they are -

I think it must come down to whether the detention of the applicant was justified or not.

MASON CJ:	Now, having regard to the statement made in the Full Court judgment that no complaint is made in
relation to the paperwork so far as it relates to
the detentions in question, what issue would the
jury be asked to determine?
MR ANDERSON:	In our submission, Your Honour, there are two

issues and if I could address the one that

Your Honour has referred to. The Full Court in

relation to the, what Your Honour terms the,

paperwork said that there was a concession by the

applicant. Now, whether there was or not a

concession is not clear from Their Honours' judgment

but they certainly treated the concession, if there

was one, as different from the concession that they

said was made in relation to the letter by

Senior Constable Smith. They said that although

that letter went into evidence without objection,

it was so prejudicial that there should have been

warnings by the - the matter should have been

explained by the trial judge to the applicant who

appeared in person and because of the prejudicial

nature of the material it should not have been

allowed. So that, in our submission, the fact that

the Full Court treated that concession as one that

had been made and effectively dispensed with any

argument that there may be based upon the paperwork

or the procedural requirements of the Act is, in

our submission, unsatisfactory.

The second matter which was raised by the

applicant was whether, in the. exercise of

their powers under the statutory procedures, there

had been mala £ides on behalf of the doctors and

the State of Victoria vicariously. It was in
respect of that second matter that the court said
that there was overwhelming evidence and there was,

I think, at the bottom of page 118:

No rational explanation for entry by them

into a conspiracy wrongfully to detain

the appellant was put forward by him.

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Now, it is really only on page 118 in the bottom

half of the page and on page 10~ where there is a

short recitation of the facts, that the

Full Court deal at all with the second claim for

wrongful imprisonment. In our submission, that

examination is, with respect, superficial and it

is unsatisfactory, particularly as what the court has

done is to not follow the general practice or not

follow the principle of law that they have referred

to, the principle of law laid down by

Chief Justice Dixon which appears on pages 114 and 115.

If I could just take the Court to that, in

BALENZUELA's case, what Chief Justice Dixon was concerned to do there was to - particularly on

the second page - set out the circumstances in which

an error of law might arise and he contrasts an

error of law where there might be an erroneous dealing

with the facts and in the last part of the passage

quoted, he says:

But where the error is of law and is one

of the foregoing descriptions -

and that includes (c) matters of burden or proof -

it is not for the Court to proceed to

inquire into the facts of the case and

form a conclusion as to what the jury would
or should have done had the trial

proceeded entirely in conformity with law

and without any misdirection or

misreception or erroneous rejection

of evidence. That is what the decision of

the House of Lords in BRAY V FORD means.

That statement of principle of the learned

Chief Justice followed the statement of

Mr Justice Cussen in HOLFORD's case but it also

followed an earlier consideration of the High Court

in,again, a judgment of the Court which was delivered

by the Chief Justice and it is a statement of

principle which has been subsequently followed by

the High Court. What the Full Court did, it

enunciated the principle. It said, "We'll apply

that in relation to the first incident but we won't

apply it in relation to the second incident", and

at the bottom of page 117, to justify the approach

they referred to a decision of MANNING V BERNARD MANNING

and, in that case, the principle is a different one

because that was a case where the appeal was in

relation to a matter of fact and Your Honours can

see that from the second last line:

deciding the case as a matter of fact

upon the true issues, the court may

interfere.

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So that the court has enunciated the proper

principle in relation to the first incident. They

have evaluated the evidence themselves in relation

to the second incident and to justify the

substitution of their own view they have referred

to MANNING V :MANNING which is not the appropriate

principle.

DAWSON J:  When you say they have evaluated the evidence in

relation to the second part of the case, you mean

they decided that there was no evidence of

dishonesty on the part of the psychiatrist concerned?

MR ANDERSON:  Well, they said two things. Firstly, they

rely on the concession about the paperwork and,

secondly, they said that, in relation to the

question of the honesty of the diagnosis of each of

the succession of psychiatrists, they said there

was no rational explanation for entry by them into

a conspiracy and that the evidence in support of that contention as being lawful is overwhelming.

But, there is no examination in the judgment of that
evidence except for the short statement which

appears at page 100.

DAWSON J:	Is there evidence of dishonesty?
MR ANDERSON:	In our submission, the Court should not look

at that because the general principle is that if there

is an error of law of the nature set out by the

Chief Justice, it vitiates the proceeding and it

should be the right of a party to get the fair trial

that he should have got. Perhaps that statement is

more - it is certainly set out by the Chief Justice

but it is also restated in the earlier decision

of HOCKING -

DAWSON J:  You cannot really vitiate something that has

already been vitiated in the sense that if there was

no evidence, there was no evidence and the, no

doubt this is put against you, error of law cannot

affect that situation, can it?

MR ANDERSON:  Well, Your Honour, the Full Court says that the

evidence is overwhelming. Now, if the judgment had

referred to the evidence, then it would -

DAWSON J:  Well, that is what I am asking you, was there

evidence of dishonesty on the part of the two

psychiatrists'opinions?

MR ANDERSON:  Your Honour, we have the transcript before us

but I do not seek to address you on the particular

aspects of the evidence. It was certainly a matter

which was put by the applicant and he conducted his

own hearing and Your Honours will have seen that the

Full Court saw the difficulty of distilling what

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was evidence and what was assertion and, in fact,

the Full Court refers to assertions rather than

evidence earlier on.

DAWSON J:  Well, you cannot point to any evidence of

dishonesty on their part?

MR ANDERSON:  Your Honour, I do not point to any evidence

but, in my submission, the fact that that was a live
issue, the detention of this man for a number of

months by doctors in the hospital following him

being taken there by the policeman is such a

serious issue that it should not be - the failure
by the Full Court to examine the evidence and to

refer to what evidence there was is a serious matter

but the central point, in our submission, is that

the principle of law that they enunicated which,
in our submission, is the correct principle is that

where there is an error of law, the proceedings

are vitiated. The error of law was, principally,

the question of burden of proof, that it was for the

applicant himself to establish that the

imprisonment was unjustified. Now, there is no

doubt that there was an imprisonment or a detention

in the hospital.	The sole issue is whether it was
justified.

Now, what the Full Court has done is to turn

that back on the applicant and has said no rational

explanation was put up and they have ignored the fact

that there was such a fundamental error that the

appellant has been deprived of the opportunity of

having the issues determined by a jury.

If I could hand up to the Court the three

separate decisions. These are only extracts from

the judgments but, firstly, the BALENZUELA judgment,

if I could refer to the judgment of the Chief Justice

at page 235, about the last seven lines, where

His Honour says:

The basal distinction between the court's

duty and the function of the jury cannot

be confused in this way. The question

whether an error of law made at a trial calls

for a new trial depends on definite

considerations involving a legal criterion.

And then, it goes through the matters that the

Full Court set out in their judgment and including

the passage that I have already read to the Court

which is on page 236, below the reference to

Mr Justice Cussen in HOLFORD's case, about the

court substituting its own view for that of the

jury. And then, if I could refer to the next page

which is an extract from the judgment of

Mr Justice Windeyer at page 243 and about the

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last ten lines:

A new trial cannot be refused just because

the court thinks the jury's verdict right,

any more than a new trial can now be

granted merely because the court thinks the

verdict wrong. There is a clear distinction

between, on the one hand, applications for

a new trial on the ground that the verdict

was against the weight of evidence or

because of discovery of fresh evidence or

because the judge's summing-up was, in

relation to the facts, insufficient, and, on

the other hand, complaints of misdirection of law or wrongful rejection and reception of evidence. In the f0rrner cases a new trial

is, within limits, a discretionary remedy to

be applied only if the court thinks there

has been a miscarriage of justice. But in

the latter cases there has been an error in

law; and the court must assume that it has,

or may have, resulted in a miscarriage of

justice, for a party has a right to have his

case tried according to law.

And, the earlier decision I referred to was the second case of HOCKING V BELL, and if I could refer

to the extract from the judgment of Mr Justice Dixon

at page 499 the second-last paragraph:

A distinction has always existed between

cases on the one hand in which the verdict

is vitiated by some legal error, such as a

material misdirection or misreception of
evidence, or was peverse in the sense that

the jury disregarded a judge's direction and,

on the other hand, cases where, on

conflicting evidence, a verdict is found

which is said to be against the weight

of the evidence. In the former case,

apart from the modern rule about substantial

miscarriage, a new trial was granted

ex debito justitiae. In the latter it was

a matter depending upon a more general

discretion.

And then, the third case of GENERAL MOTORS V MOULARAS,

the matter was dealt with in some detail by

Mr Justice Menzies and on pages 255, he

deals with HOLFORD's case and then the passage that

we have quoted from Chief Justice Dixon and then at

the bottom of page 256, the second-last paragraph:

It follows, I think that although an

appellate court can and should determine

whether a misdirection upon a point of law

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may have affected the verdict of the

jury, there is in the ordinary case no

way for an appellate court to decide

whether or not a misdirection did so and

the rule does not invite an appellate

court to attempt to decide this.

The Full Court was prepared to follow those

principles in relation to the first period of

detention but not in relation to the second.

Now, the second issue, again - - -

DAWSON J:  I still am having a little difficulty in

understanding how, if there were no evidence on

which the jury could find against the particular

defendants we are concerned with, you can say

any misdirection would have affected.

MR ANDERSON:  Your Honour, I can say that each of the

doctors was cross-examined about the views that they

had formed at the time that they interviewed the

applicant in 1970 and were cross-examined as to the

reasonableness of the views that they formed as to

whether he was mentally ill or not. So that, there

was evidence in the form of the answers that they
gave and later there was evidence that the

applicant gave himself in relation to what he

believed to be his state of mind at that time from

which the jury could have come to their own

conclusions so that there was, in that sense,

evidence.	The Full Court does not go as far as to
say that there was no evidence.	They say that

there was overwhelming evidence but they make no

examination of that themselves.

DAWSON J:	I see.
MR ANDERSON:	The second principle relates to the question of whether, if there is to be a retrial, whether it
should be limited and, again, the Full Court, in
our submission, refers to the appropriate principle but
does not apply the principle correctly and the
principle is at page 116, where they refer to
the judgment of Mr Justice Kitto in PATEMAN V HIGGIN,
where he said:

that the general rule was to grant a full

re-trial unless "they shall do more

injustice by setting the matter at large

again" than by restricting the scope of

the new trial.

TOOHEY J:  Mr Anderson, is this submission directed at the identity

of the defendants, I am not sure what is meant at the

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moment by a partial retrial. Are you speaking in

relation to the identify of the defendants or the

finding of the Full Court that, as it were,

damages against the other defendants were to be

assessed up - if the case was made out against them -

to and including the date of admission.

MR ANDERSON:  What the Full Court did was to say that there

were two discrete periods of detention: the first

period, in respect of which the policemen were

involved, the second period, after the applicant was

taken to the hospital. They said that there should

be a retrial in respect of the first period

because - - -

TOOHEY J:	Yes, I appreciate that.
MR ANDERSON:	But, there should not be a retrial in respect

of the second period.

TOOHEY J:  Yes, but in respect of the first period, the

damages, as it were, could only be assessed - perhaps

this is reading too much into the judgment - but:

It is further ordered that otherwise there

by a new trial of the action ..... up to his

lawful admission on that date to the Royal

Park Psychiatric Hospital.

Is it implicit in this, that if damages were

recovered against the first and second defendants,

they could not extend beyond the date of admission

to Royal Park Hospital?

MR ANDERSON:  Yes, that also, Your Honour, appears to be the

effect of a decision of this Court on almost

equivalent facts.

TOOHEY J:  But, is that aspect of the Full Court's judgment

challenged by you at the moment?

MR ANDERSON:  Yes, it is. We would say, although I have not

addressed it directly, that it is appropriate that

there should be a full retrial.

TOOHEY J:	Of all issues against all defendants?
MR ANDERSON:	All issues, yes.
TOOHEY J:	Is that what we are to read into this amended

ground of appeal?

MR ANDERSON:  Yes, Your Honour, and the two reasons are the

two - really, the first point, point (a) is,

because they came to that decision the Full Court

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then did not apply the correct principles of

law as enunciated in paragraphs (b) and (c).

In relation to the second matter, instead of

dealing with the question of whether injustice would

result from ordering a full retrail, the

Full Court really turned it round and put the onus

of establishing why there should be a retrial on

the applicant and, in our submission, no

injustice could result from the ordering of a full

retrial. There is to be a retrial in any event,

albeit that 20 years have passed since the events,

and secondlyp klthough the Full Court says that each

period of detention is discrete, Your Honours will

see from the sequence of events that there is an
overlapping of the periods of detention,that after
the applicant was admitted to hospital the policemen
were directed to take the applicant into the care of
the nursing staff in a particular ward and that

statement is -

DAWSON J:  Mr Anderson, can I interrupt you? I may have

missed something you said, but if you were not

successful in your contention that there should be

a full retrial against all of the defendants, do you

have a fall-back position and say that, at least,

the period should not be restricted to the period

of detention before admission to the psychiatric

hospital?

MR ANDERSON:	Yes, we would submit that.
DAWSON J:	On the basis that?
MR ANDERSON:	That where the Full Court - - -
DAWSON J:	He would not have been certified, if that is the

correct word, .had he not been detained by the

police. In other words, that -

MR ANDERSON:  Yes, there is a difficulty with that argument,

Your Honour, because of a decision of this Court

but, at least, we would say that where the Full Court

said that the two periods of detention were discrete,

they ignored the period of overlap.

(Continued on page 11)

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DAWSON J: That is WATSON's case you are referring to, is it?

MR ANDERSON:  Yes.

DAWSON J: Which says that you cannot approach it that way?

MR ANDERSON:  Yes, although in that case there was no overlap

and it is not, again, the question arose as to the

protection offered by section 64 of the :MENTAL HEALTH

ACT. The second reason why that issue should be kept

open - although this will not apply if the Court is
against us - is that if there was malafides on the part
of the doctors, or the possibility - or that is an
issue that the jury should decide, then, quite clearly,

the question of the policeman's liability beyond

admission to hospital should be one that should be

kept open as an issue of causation.

If we could just make four points in relation

to the - if one considers the question of whether

injustice would result from the ordering of a full

retrial, we have made the submission that the

Full Court's analysis of the evidence and submissions

in relation to the second period of detention are

short, particularly when one compares them with

the analysis that they made in relation to the

first period of detention.

Secondly, I have referred to the question of

the concession made by the applicant in relation to

the paperwork. Thirdly, the analysis made by the

Full Court in relation to the effect of section 42

of the :MENTAL HEALTH ACT, on pages 99 and 100, is

wrong in two respects. Now, they are not material respects but, again, it indicates that the - well,

they are material but they may not be material to

the result Qf the case. But they indicate, again,

the lack of detail with which the Full Court

considered the second period as opposed to the

first period.

The two respects in which they are wrong

are: firstly, on page 99, it said that:

The request for reception of the appellant was made out by Dr Cade -

and that is wrong, as a matter of fact, because it

appears from the other evidence that it was made

out by Constable Fletcher and that Dr Cade did not

see the applicant until the following morning

in pursuance of his responsibilities as superintendent.

The second matter is: the Full Court have not applied the section correctly where they say that the production of the three documents permitted the

detention of the applicant. The detention was not

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authorized by the three documents. The detention was

only authorized by the superintendent after he

conducts his examination. The final point is really

the point that I canvassed about the Full Court's dismissal of the matters in respect of which they

relied as constituting an error of law in relation

to the first period and the different emphasis

that they give in relation to the second period.

As to why the Court should grant special leave,

we say that there has been an error by the Full Court

and, secondly, we say that the interests of the

administration of justice require that the matter

be redressed. Firstly, because there is obvious

confusion in the application of the law by the

Full Court as to the circumstances in which an appeal

court can substitute its own verdict for that of the

jury, whether it is confined to a matter of fact which it clearly is not, but that was one of the

decisions relied upon or whether it is confined to

a matter of law and if so, what sort of matter of

law.

Clearly, here, a matter involving the burden

of proof was of the nature that Chief Justice Dixon

thought should constitute a review of - it was the

sort of error where there should be. a retrial as of

right. We say that in any event, specifically in

this case, the error should be redressed because,

in any event, there is going to be a partial retrial

of the matter. If the Court pleases.

MASON CJ: Yes, thank you, Mr Anderson. Yes, Mr Golombek.

MR GOLOMBEK:  If the Court pleases. The first submission that

I desire to make to the Court is that the Full Court

did not substitute its own view of the facts in this

case. What the Full Court did here, Your Honours,

was that it found that there was a clear misdirection

by the trial judge and that there was a substantial

wrong miscarriage but that did not affect the

part of the detention subsequent to admission to

the psychiatric hospital. Now, the Full Court

indicated that this was an exceptional case and it

was exceptional because, on the first question -

the onus of proof - the evidence is clear that the
respondents conceded that the applicant was totally

constrained - that is, imprisoned - during the period

of the post-admission to hospital period. Now, that

is quite clear from the trial judges' charge at

pages 13 and 14 of the application book. First, at

the top of page 13:

He was detained and the defendants do not

dispute that fact.

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That refers to the detention at the

psychiatric hospital. I might also indicate to

Your Honours that in the address to the jury on

behalf of the respondents it was conceded that they

would have no difficulty in finding that during the

period in the hospitals he was totally constrained

and, therefore, imprisoned. Also on page 14,

referring later on to the other hospital:

The defendants do not suggest he was not

detained during that period.

The matter is again referred to in the judgment of the Full Court at page 99 of the application book:

The defence with respect to the period of

hospital restraint rested upon an altogether

different footing. Here again it was conceded

that the appellant was imprisoned throughout

the period that he claimed he was under restraint

as a hospital patient.

TOOHEY J:  Mr Golombek, did the plaintiff contend that the

damages to which he was entitled by a reason of the

false imprisonment by the first and second

defendants - or one or other of them - extended

beyond the date of his admission to hospital?

MR GOLOMBEK: Yes, he contended at all times that certainly - well,

the first respondent was the State of Victoria who

is vicariously liable; second respondent was

Dr Birrell who signed a recommendation which said that,

in his opinion, he should be admitted for observation

at a psychiatric hospital. It was for observation

at a psychiatric hospital; so it was not a certificate

that he was mentally ill; he simply said that he

appeared to be mentally ill and that he ought to be

admitted at a psychiatric hospital for observation.

Now, what the applicant contended was that

that recommendation by Dr Birrell was causative,

not only of his detention by Dr Birrell during

the short period that he saw him, but also of all

subsequent times at the hospitals.

TOOHEY J: Well, now, the order of the Full Court granting

a retrial as against the first and second defendants

would preclude the plaintiff, as I understand it,

from recovering damages against those defendants

beyond the date of his admission to hospital.

MR GOLOMBEK:  That is so and that is on the basis of the

decision that my friend mentioned in - - -

MASON CJ: WATSON's case.

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MR GOLOMBEK:  - - - WATSON, but there is also a unanimous

Court of Appeal decision which was followed by a
unanimous decision of the House of Lords. Perhaps

I could hand up to Your Honours the list of

authorities of the cases. That is the case of

HARNETT V BOND which is referr0d to be

His Honour Mr Justice Walsh,as he then was, which

in similar circumstances to this, clearly states
that the period for which the detention, or the

total constraint of the person in Dr Birrell's

position could be responsible for is, at the

latest, when he is admitted to hospital.

The position being that for false imprisonment

the gist of it is a total constraint and here, of

course, the applicant's action was limited to

false imprisonment. He initially had proceedings

for negligence as well and for assault but in his

first application to the Full Court in 1980, the

order was that his new trial was to be limited to

false imprisonment against those four defendants

and also damages limited to damages other than for

personal injuries because he did not issue the
proceedings until just before the six year limitation
period elapsed and, of course, in Victoria there

was a three year limitation period for personal

injury damages. So that case, it is submitted,

and does the Court desire me to take you to the

various passages?

MASON CJ:  No, there is no occasion to do that.

MR GOLOMBEK: It is a clear case, a unanimous decision - I

think the five Law Lords say that in those

circumstances the person in Dr Birrell's position

is not responsible for the causation subsequently

of his detention. Now, getting back to the first

important point in my submission and that is that

here, on the question of onus of proof, what the

applicant had to prove was conceded. It was

conceded all the time that he was imprisoned or

restrained so the jury, realistically, did not even

had to consider that aspect of the case. They were

realistically concerned with the second aspect:

namely, was that conceded false imprisonment lawfully

justified? On that issue, it is submitted that the

learned trial judge was not in error and he clearly

indicated to the jury that the onus of proof on that

issue was on the respondent and that appears at

page 113 of the appeal book.

MASON CJ: It is in the passage quoted.

MR GOLOMBEK:  Yes, where the Full Court, yes:

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" ... The onus is on the defendant to establish it was justified - lawfully justified, either

at common law or under the statute."

So, in one sense, what the Full Court was saying,

it is submitted, is that, "Look, although there

was a misdirection as to the onus of proof - what

the plaintiff had to prove - it really didn't

matter because it was all conceded". Now, the

second aspect that the Full Court found exceptional

in this case was that the applicant conceded that

that documentation which made the detention lawful

were as the legislature required and that appears

at page 118 of the appeal book.

No attack was made by the applicant either at the trial or on the appeal to the State Full Court

in respect of the statutory documentation and it is

submitted that those two factors which the Full Court

took into account show that the case is exceptional

and show that the misdirection in this case on the onus of proof was not causative, or did not affect

that part of his detention subsequent to his

admission to the hospital. So, it is first of all

submitted that on this ground the applicant has

little prospect of success even if leave to

appeal should be granted.

The next matter that I desire to address the

Court to is the Full Court had indicated, on

page 116 of the application book:

However, at the hearing of the appeal the

question was raised as to whether a new trial,

if granted, ought not be limited -

Now, that question was raised. Senior counsel

appeared for the applicant and conceded the

Full Court's power to grant such limited new trial in this case. Although he made a statement that the Full Court ought not to give a new trial that

was unlimited, he advanced no argument or reason as

to why it should not be limited. Now, it is

submitted,in those circumstances, those facts make

this application not the appropriate vehicle - or a

suitable vehicle for the grant of special leave.

There are also other matters on the question of

discretion - matters of justice to the respondent -

that I ask the Court to consider and that is that

this was a cause of action that accrued some 20 years;

proceedings were not issued until shortly before

the limitation period expired; three doctors are now

deceased - Superintendent Cade, Deputy Superintendent

Kessler and an independent doctor, Dr Brady, who had

transferred the applicant from one of the hospitals

to another. The next door neighbours who were vital

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witnesses to the threats by the applicant on them -

or the alleged threats - they cannot be located.

MASON CJ:  Mr Golombek, we need not trouble you further.

MR GOLOMBEK: If the Court pleases.

MASON CJ:	Now, Mr Anderson do you want to reply?
MR ANDERSON:	Your Honours, the only point related to the

question of burden of proof. Our learned friend,

Mr Golombek, said that it was conceded that he

was detained but the point at issue was not whether

he was detained but the fact that the judge's

charge made it appear as though it was an element

that the plaintiff had to prove himself whether

the detention was unjustified and that quite

reversed the burden of proof.

MASON CJ: Thank you, Mr Anderson. The Court is not persuaded

that this proposed appeal raises any question of

general principle and on that account the Court

would refuse the application.

MR GOLOMBEK:  I make an application for costs.

MASON CJ: Yes, you do not dispute that do you, Mr Anderson?

The application is refused with costs.

AT 3.33 PM THE MATTER WAS ADJOURNED SINE DIE

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